Best Practices for Legal Education

Several of the sessions at the recent AALS clinical conference in Tucson raised issues that involve what many call cultural competence. (EXCELLENT CONFERENCE, by the way). All agreed that these issues are very difficult to address. I have an article coming out in the Wash. U. Journal of Law and Policy this fall that grows out of the many years we have tried to teach about these issues at the University of New Mexico. Because our faculty, student body and client base in the clinic is so diverse, our differences become very obvious. Influenced by the MacCrate Report, Carnegie and Best Practices, I tried to articulate learning objectives that address cultural issues. I broke them up along the lines of MacCrate’s vision of skills, knowledge and values. In the article, I use the term “culture “, not in the anthropological sense, but more in the sense of differences between individuals that are related to different backgrounds, value systems, religions, classes, ethnicity, race or other factors that contribute to a person’s experience of the world. Building on the work of Jean Koh Peters, Sue Bryant, Christine Zuni Cruz, Margaret Montoya, Michelle Jacobs, Carwina Weng, Paul Tremblay, Marjorie Silver and others, the learning objectives are described as both “breaking” habits of mind and attitude that inhibit intercultural communication and understanding and “making” habits of thought and skills that enhance intercultural communication and understanding. The learning objectives focus on helping students to improve their knowledge about culture and difference, increase their self-awareness about difference and enhance their practice skills across cultural difference. And, of course, as supervisors teach to the objectives, they also learn. The article is called, “Making and Breaking Habits: Teaching and Learning Cultural Context, Self Awareness and Intercultural Communication Skills in a Client-Service Legal Clinic”.

In the article, I also describe a memo that I provide to students at the beginning of the semester setting out the clinic learning objectives in question format. The memo addresses many areas that arise from the MacCrate statement of skills and values. The questions in the memo that address culture and difference issues include: “Do I take every opportunity to learn about my client, including background and culture, as well as the client’s problem and objectives of the representation? Do I research all relevant issues including those involving the client’s culture and background? Do I approach all of my clients with humility and respect? Do I listen carefully to my clients and seek assistance when I feel I don’t understand my client’s perspective? Do I work on understanding myself as a cultural being to better understand differences between others and me? Do I check my reactions to events and try to identify any stereotypes or bias, so that I can ensure that my representation is based on facts and not assumptions? Do I explore alternative explanations for differences as part of understanding differences? Do I seek to understand differences between my client and me and seek to communicate effectively across those differences?

I would be interested in learning from others about whether you state your teaching objectives in a memo and whether you set out teaching objectives related to these issues.

As part of the joint project with the UNM medical school that I described in earlier blogs, we used standardized clients in my Family Law course the same way standardized patients were used at the Medical School, as a potential tool of assessment. I am now thinking about using them again next year in my Family Law class and now with one semester experience under my belt, I am thinking about the potential of using them more effectively as part of the training. I saw that student interest and engagement in the topic was definitely improved because of their need to prepare for and conduct an initial interview with an actor. And, the actors filled out their evaluation of the student’s performance, so the students received feedback. I am wondering whether it might be more effective for the actors to discuss the interview with the student out of role. That is, the actor would go over the evaluation sheet and give an honest appraisal about the student’s strengths and weaknesses in the interview and also answer the student’s questions. I think such a direct communication would help the students develop more self awareness and also be a very effective formative tool to help students improve their skills. Of course, this would require that the actors be trained in effective interview techniques. I found that it was simply not practical for me to go over them with the students one by one. Too many students, not enough time! Another thought is to have the student’s go over the interviews with each other.—perhaps in pairs. Of course, this would be after training too! As I prepare to use standardized clients again this fall, I welcome your ideas about this. It would also be great to hear from others who are using standardized clients. If you don’t want to blog about this, please email me lopez@law.unm.edu with your ideas and suggestions. Thanks!

I got the idea for this blog post from Chuck Weisselberg.   We all feel unworthy sometimes to tout what we do as BEST Practices.  It’s probably easier to name the poor practices of legal education.  So here’s the beginning of my pet peeves :

1) Acceptance of  law professors who disparage and show immense disdain for the VERY profession in which their students are preparing to join

2) Allowing the book to define how and what you choose to teach

3) Regurgitating in class what students should have read to prepare for class

4) Creating and supporting false dichotomies between theory and practice, ethics and “thinking like a lawyer,” and professional and personal values.

Please join me in commenting on the WORST PRACTICE scenarios you see in legal education…

As I was frantically trying to clear out my emails to stay under my disk quota, I ran across an email sent to the faculty by Barbara Blumenfeld, our Legal Research and Writing Director. I had saved it because I liked it. I thought it could use a broader audience so I asked her if I could post it. She graciously gave her permission. Here it is:

This past summer the Legal Writing Director’s conference focused on “Best Practices in Teaching, Management, and Scholarship.” We had several speakers and workshops on both the Best Practices and Educating Lawyers books. This reflects the fact that legal writing has been concerned with and teaching using many of what are the “best practices” for twenty years or more.
One of our plenary speakers was Judith Wegner, one of the authors of Educating Lawyers. Some of her comments reflect what you already know if you have explored the legal writing literature or talked with legal writing professionals: that legal writing is not an English class but is about reasoning and argumentation and that its pedagogy can lend insight to legal education generally. That is, it teaches legal communication and problem solving. Professor Wegner noted many of the special virtues of legal writing pedagogy, including:
* Bringing together content knowledge and practical skills in close interaction
* Allowing “time out” to observe/analyze thinking
* Fostering of the development of metacognition
* Tacit structure that models professional practice and self-awareness
* Integration of “practice” and professional identity with theory/cognition
Since lawyers are generally communicating a legal proof to a variety of audiences, legal writing must teach the skills necessary to develop that proof as well as to communicate it. Those skills are many of the skills noted as essential to training lawyers. Legal writing professionals have been studying learning theory and applying it to this teaching task for many years. Your UNM legal writing faculty would be delighted to discuss these thoughts and legal writing pedagogy with you more, either individually or perhaps as a panel at a dean’s hour or something similar.

Lately, I find myself asking myself a question right before teaching some material, “What does competency look like in this subject area?”  I ask this in part because of student statements about the opaqueness of legal ed — that they do not know what we want them to be learning, exactly.  I also ask this question in part from recent realizations that teaching from a case book and being attentive to case law (or statutes or even problems) does not indicate what I really want students to learn about that material — namely the frameworks for analysis, the depth of knowledge and the application of that material to other fact patterns.  By covering material, I still am teaching law students as law students — not as test-takers or attorneys.  So I have tried to shift my approach sometimes and be more explicit about what competency looks like.  I may suggest a court’s or student’s analysis merits competency in an area or announce in class, “Here’s what a competent statement of a rule might look like,” or “Here’s how a defense lawyer might argue this issue.”  I know that this might be construed as spoon-feeding, but I want students to understand the general framework of a competent answer before I ask them many more hypothetical fact patterns.  (After all, piano teachers demonstrate competency before asking their charges to practice toward that goal.)  Has this express use of competency been successful?  I don’t know.  I do know it feels right to treat students not always as students, but also as future test-takers and lawyers — as “doers” and not just as note-takers or listeners.

As we have been working on curricular planning, one of my colleagues, Laura Gomez could not attend an early meeting (I think she was at a book signing or her son’s field trip or something). With her permission, I am posting her thoughts:

Initially I’d like to thank Suellyn for turning our attention to the Carnegie report and to the Best Practices for Legal Education report. Together, the books point to deeply entrenched problems with how law schools teach and prepare students for the legal profession; they also suggest strategies for improvement. I share Suellyn’s assessment that we at the Universityof New Mexico are poised to take advantage of the cumulative wisdom presented in these studies. We are well-suited to do so for three reasons: (1) we are a highly collegial group (those of us who have come from other institutions might see this more clearly, but I think we all know it at the gut level); (2) we have a tradition of valuing teaching and truly caring about students; and (3) we have an enviable student-faculty ratio.

Reading these two books helped… Read more »

As I said in my last post, the Best Practices book suggests that a law school’s curriculum should “achieve congruence in its program of instruction”. Congruence requires that law schools harmonize educational programs with mission; curriculum with educational outcomes, and instructional objectives with curriculum (p.93). My last post focused on mission, this one will focus a bit on educational outcomes. At first blush, this can seem a bit intimidating, after all, the range of skills that a lawyer should have can be daunting. However, we do have some guidance in the MacCrate report published by the American Bar Association in 1992, the plethora of literature that as written before that report came out (and the many pieces that have been written since ) our own experiences, and our knowledge about the communities our graduates will serve. Read more »

As a recent graduate (< 1 year) of Albany Law School, and a current Graduate Fellow in the Albany Law School Clinic, I’ve had the unique opportunity to be on both sides of the legal education fence.  Recent conversations with both doctrinal and clinical professors regarding the student experience in law school has made it clear that students and faculty/administration have very different perspectives on who the “good professors” are.  In almost every instance the students’ opinion (based on my understanding of the most pervasive complaints overheard in school corridors) was in direct opposition to the professors’ perspective.  Those professors who perennially fall within student disfavor seemed to be the ones that were most highly regarded by their colleagues for their teaching skills, and vice versa.

So, prompted by Professor Schwartz’s project (see prior post), and my unique position, I ask what makes a good law professor?   Read more »

Recently, Professor Michael Hunter Schwartz from Washburn University School of Law, and a contributor to this blog, sent me the following email:

Dear Colleagues,
 I am in search of the best law teachers in this country, and I could use your help.  I have the extraordinary opportunity to conduct a law professor-focused, follow-up study to Ken Bain’s wonderful What the Best College Teachers Do (Harvard University Press, 2004).

 Thus, I am writing to solicit your nominations. In particular, I am looking for teachers who consistently produce extraordinary learning, who change their students’ lives and whose instruction stays with students long after they graduate from law school. I hope what I produce inspires you as much as Professor Bain’s work has inspired me.

Over the next three years, I will be:

• soliciting nominations;
• gathering evidence of nominees’ excellence;
• paring the list of nominees to the most extraordinary law teachers;
• visiting law schools around the country, sitting in on classes, interviewing the nominees, and talking to focus groups of students and alumni;
• and then publishing what I have found in a book: What the Best Law Teachers Do (Harvard University Press, forthcoming 2011).

I have set up a web nomination process (although I will also accept nominations by phone, by e-mail, by regular mail, or in person).

To nominate a candidate or learn more about this project, please go to http://washburnlaw.edu/bestlawteachers Click on the link on the right side of the page to get to the nomination form.

 To honor those who have been nominated, I have set up a website on which I will report the name of each nominee, the nominee’s institutional affiliation, and a few comments from the nominator.

Here’s a link to that website: http://washburnlaw.edu/bestlawteachers/nominees/index.php

Feel free to e-mail me at michael.schwartz@washburn.edu if you have any questions. The names of nominators and nominees will be withheld upon request.

Sincerely,
Professor Michael Hunter Schwartz
Washburn University School of Law

Warren Binford, Annette Appel and I are leading a concurrent session at the AALS Clinical Conference in Tucson this May.  Our session is entitled “Strategic Planning:  Learning From Our Mistakes and Growing From Our Experiments.”  We are planning to engage the audience in some strategic planning techniques.  In thinking about our upcoming session, I reflected on Best Practices and curricular planning because I think that a law school’s curriculum is foundational to its identity and its aspirations.

The Best Practices book suggests that a law school’s curriculum should “achieve congruence in its program of instruction”.  Congruence requires that law schools harmonize educational programs with their mission, their curricula with educational outcomes, and instructional objectives with their curricula (p.93).   The ideas derive from educational theory and research, but also make a lot of common sense.  It makes sense that a law school should connect its program of instruction to its mission.  For example, if a law school has a social justice mission, its curriculum would not make sense it if was primarily a business focused curriculum–and vice versa.   If a law school touts its strengths in an area, its program of instruction as well as the research agenda for the institution should reflect that strength. Read more »

The University of Denver, Sturm College of Law is using some of the sessions in its faculty lunch series to think about and talk about the Carnegie Report and Best Practices.  I spoke at a faculty lunch on March 13 about Best Practices.  I asked the organizer, Laura Rovner, in advance of the presentation about whether I should assume that faculty members were familiar with the book.  She said no, it would be handed out after my presentation.  I decided to focus on curricular development, assessment and professionalism.  So I discussed the basic principles about developing a coherent curriculum, the basic need for students to receive formative and interim assessment based on clear articulation of learning goals and I posed the question about what professionalism education might look like at their law school.

I quickly realized that Read more »

            Washington and Lee University School of Law is dramatically changing its curriculum by creating a new third year curriculum devoted to professional development through simulated and real-client practice experiential learning.  Influenced by the Carnegie Report, Educating Lawyers, and Best Practices for Legal Education, the new third year curriculum integrates legal theory, doctrine and the development of professional, ethical judgment necessary to the development of professional identity.  This is one of the most comprehensive reforms in legal education undertaken by any law school. Read more »

Maybe this is already well-known, but (without conceding that paper-and-pencil exams of any sort necessarily constitute useful assessment of integrated legal skills and knowledge), I thought it was a slightly encouraging example of movement on the assessment front.

I’ve learned from postings on other list-servs that both Loyola L.A. and University of St. Thomas have started to require midterms in certain sections of required first year courses (e.g., Property, Contracts, Civil Procedure, Torts). Read more »

After recently having numerous discussions with teachers and students about the value of students outlining a course, one thing is clear – the age-old practice of outling is thriving.  One thing that is not as clear is the value of a practice that does not involve any teacher-student interaction. So, I thought it would be fun and interesting to ask, “What if….?”  As an experiment, I have started an interactive outline on my class Blackboard site.   Students can post their outlines on this Web platform — anonymously if they want — and I can post comments.   This type of mutual access might allow information to flow in different directions — to the student who posted, to the prof as formative feedback, and to other students who read the posts.  The site is intended to help visual students, give profs an understanding of how students are learning and permit mid-course corrections and fill-ins.   Will this idea crash and burn?  I will keep you posted.

The International Conference on the Future of Legal Education was held recently, Feb. 20-23, and it was the most comprehensive look to date concerning new initiatives in legal education around the world.  The materials from the conference are available at http://law.gsu.edu/FutureOfLegalEducationConference/index.php, and this post will briefly mention just a few of the highlights.  Read more »

If you were uable to attend this conference, you can view the PowerPoint slides from a Presentation by Paul Maharq and Liz Li:

| View | Upload your own

Here’s more about the conference:

• Paul’s Blog: http://zeugma.typepad.com/zeugma/2008/02/the-future-of-l.html  
• Law School Innovation’s”Live Blogging” - http://lsi.typepad.com/lsi/2008/02/liveblogging-th.html 
• PPT Slides from some of the Presentations - http://lsi.typepad.com/lsi/2008/02/more-stuff-from.html

This posting is a belated answer to a question Mary Lynch posed in her comment on a posting here at http://tinyurl.com/2r7fgo.  Mary was asking about examples of ‘successful “in role” learning environments/exercises which work in non-clinical, larger classroom settings’.  With regard to in-role learning environments, folk might be interested in what we do with simulation on our Diploma in Legal Practice in the Glasgow Graduate School of Law.  Read more »

I was asked in a comment to my last post on formative feedback, How are we going to motivate teachers to do the extra work required to give such feedback?  The answer is to show how learning increases if formative feedback is a regular part of the educational process.  Change often is incremental.  While institutions won’t simply give credit for such feedback, grass roots changes are possible.  Why not have a formative feedback day, where across America, law teachers everywhere can incorporate some form of formative feedback (even a single multiple choice question) in their classes?  How about March 4th? We have to start somewhere.

The theme of the CALI conference this year is transforming legal education, picking up on the Best Practices theme and the Carnegie Foundation Report, Educating Lawyers.  One area where the horse already has left the barn involves learning environments.  In the 20th Century, the environment was entirely linear:  teachers taught, students learned, students studied in the library and then returned to class to learn some more.  In the 21st Century, that linearity has disappeared and a multidimensional set of environments has taken its place.  Learning is not so much a function of place anymore.  Students learn on the go — have laptop or Ipod, will travel.  Law school should adapt to the portability of learning in the 21st Century, encouraging TWEN, CALI, laptops and Ipod learning — because while these adaptive environments may be uncomfortable for us 20th Century dinosaurs, 21st Century students learn in this fashion.

I just returned from an excellent conference:  Externships 4 – A Bridge to Practice.  This was the fourth in a series of national conferences by and for law school externship program faculty.  The theme of this conference was “challenging faculty and administrators to consider the role of externships in the curriculum in light of the Carnegie Report and the general call for increased skills-based, experiential learning.”  Thanks to Susan McClellan, Director, Externship Program, Seattle University School of Law and Rosanna Peterson, Director of the Externship Program at Gonzaga University School of Law for organizing and hosting this event. 

I was struck by a couple of things that I thought were worth overcoming my fear of blogging to share: 

• First, was the ways in which properly run externship programs provide just the opportunities to learn about, reflect upon, and practice the responsibilities of the legal profession that the Carnegie Report recommends.  It is important for externship faculty to share information and join the conversation about Educating Lawyers and Best Practices for Legal Education.    
• Second, was the troubling fact that some externship faculty feel marginalized, not only by the Carnegie Report which barely mentions “externships” (although it does refer to “clinics”), but by their law schools and even their own Clinics.  Some faculty see themselves, the courses they teach, and programs they run as completely separate from clinical education.  I always considered myself Clinical Faculty, having taught in-house clinics, as well as skills courses, and now field placements.   I am interested in hearing from others.

Read more »